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21st April 2011
Article first published as Is it a Breach of International Law to Assist Rebels in Libya? on Blogcritics.
‘As the International Court of Justice has made clear on more than one occasion, the principle of non-intervention prohibits a state “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another state”.
The merits or otherwise of the rebels’ cause is immaterial: whether they are fighting to depose a brutal tyrant or a model democratic regime, no state may legally assist them.’ (source Legality Blurred, The Australian)
So, even without regard to Cameron’s latest plan of sending, whisper – it just a few top military advisors to help train the rebels, something that yesterday France seemed not to agree with it sounds clear enough, doesn’t it? It’s simply illegal to help rebels. Besides, it will not be helpful for the cause of peace according to Abdul Ati al-Obeidi Libya’s foreign minister. Meanwhile, in support of Britain, or not to be outdone, France has since said it too is sending its military advisers to Libya. And now Italy says it will send less than ten military liaison officers into Libya.
No military advisers from the USA. But even for bombing from on high in “protection” of Libyan citizens, it’s hard not to conclude that Obama, Cameron, Sarkozy and the rest of the coalition of the willing may be guilty of breaking international laws.
Or are they?
Well, yes and no.
It is a breach if any outside country or force intervenes in a civil war. The NATO/UN argument is that there is NOT a civil war in Libya; there is a popular uprising against a dictatorial government which has brutally retaliated against its people.
The big fuss as the coalition of the willing sought UNSC (“legal”) approval regarding Libya was limited to establishing a “no-fly zone” and “protecting the population”. The biggest fuss was on flummoxing the opposition by showing that it was all “legal.” Legal hangups or not, the main concern should be and should always have been victory. Victory is far from guaranteed.
It might be worth a glance at two earlier conflicts which recently engaged the British government. Both of them victorious, neither unquestionably “legal”.
SIERRA LEONE – CIVIL WAR?
Libya is not Sierra Leone where the Blair’s government intervened against brutal rebels (in a civil war) and thus ended the bloodshed after 11 years of the world, the UN and the rest leaving them alone. Even though the military action had no UN mandate to intervene militarily, that intervention is seldom described as “illegal”. Yet it clearly was illegal if outsiders are not permitted to intervene in a civil war. A short history: Tony Blair sent troops in to rescue British citizens from rebel attacks in 2000. He was then persuaded by his military chief on the ground that the rebels could be defeated as a useful side-effect of the rescue. Blair agreed to this course of action. A few months later – end of story.
Wikipedia excerpt: “by May 2000 the rebels were advancing upon Freetown once again. The British intervened to save the flailing UN mission and the weak government of President Ahmad Tejan Kabbah. With help from a renewed UN mandate and Guinean air support, the British Operation Palliser finally defeated the RUF. On 18 January 2002, President Kabbah declared the Sierra Leone Civil War officially over.”
KOSOVO – CIVIL WAR?
The NATO action in Kosovo lasted less than three months in 1999, after a year or more of fighting between factions in the former Yugoslavia. As with Sierra Leone the United Nations was a foot dragger in this “civil war”, preferring to let NATO take the initiative – and the stick. Apart from the civil war element the reasons for UN inaction (umpteen resolutions – none to intervene until AFTER the NATO success) – were, as they are today, to do with the ever-so-high-minded resistance to action by such as Russia and China. This intervention was six years before the General Assembly amendment which gave outside states/bodies the responsibility to protect. So Kosovo action too should have been illegal. Oddly enough we seldom hear how “legal/illegal” that intervention was. Perhaps because the victors there were the interventionists, more particularly THAT interventionist – Tony Blair.
Are legalities written in stone? Again, that intervention was successful, and so we seldom hear complaints about its legality or otherwise.
Excerpt, Wikipedia Reaction to the war in Kosovo
‘Perhaps more importantly NATO did not have the backing of the United Nations Security Council. NATO argued that their defiance of the Security Council was justified based on the claims of an “international humanitarian emergency”. Criticism was also drawn by the fact that the NATO charter specifies that NATO is an organization created for defense of its members, but in this case it was used to attack a non-NATO country which was not directly threatening any NATO member. NATO claimed that instability in the Balkans was a direct threat to the security interests of NATO members, and military action was therefore justified by the NATO charter; however, the only NATO member country to which the instability was a direct threat was Greece, which opposed the bombing.’
RESPONSIBILITY TO PROTECT
Due to – guess what? – the essence of Tony Blair’s Doctrine of the International Community, Chicago 1999 (Number 10 website) having been added in 2005 to the UN’s Charter we now have a responsibility to protect –
September 2005 – full text of High-level Plenary Meeting of the General Assembly by the General Assembly of the United Nations at its fifty-ninth session – 2005 World Summit Outcome, adopted in full here. The General Assembly Adopts the following 2005 World Summit Outcome –
Paragraphs 138-139 of the World Summit Outcome Document
Heads of state and government agreed to the following text on the Responsibility to Protect in the Outcome Document of the High-level Plenary Meeting of the General Assembly in September 2005
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.
So, is David Cameron the new interventionist, despite promising that he and his party would have a whole different approach to foreign affairs? It certainly looks that way.
March 2nd this year, at Number 10’s morning press briefing:
Asked if the Government accepted Tony Blair’s ‘doctrine’ of humanitarian interventionism that was used to justify the military action in Kosovo, the PMS said that he thought that was a point about international law. Asked if the Prime Minister had consulted the Attorney General, the PMS said that we were doing some planning for various scenarios; we were working the phones and working with international partners to bring pressure on that regime. We were not consulting lawyers.
On whether the UK Government should be so involved in the situation, the PMS said that we thought it was right to be concerned about the situation in Libya and it was right that the international community should come together to put pressure on the regime.
If you were ever taken in by the myth that Tony Blair and his people spoke doublespeak or avoided answering the questions, you have being disabused of that by Cameron’s spokesman’s meanderings: evasion and no reasonable reply to the comparison with Kosovo; no admission that they were consulting lawyers, when they clearly were – still are, no doubt; evasion and no direct answer to the question as to whether his government should be “so involved” in the Libya situation.
BITING OFF MORE THAN IS CHEWABLE?
Legality/illegality arguments aside, I do not see those charges as anything like as important as do some, mainly because the UN itself stands charged with failing to protect. It is hardly an exemplar of principle over the big idea of “Uniting” Nations.
Mr Cameron’s intervention in Libya would be more likely to succeed and to cover him in glory if the rest of the international community were truly signed up to Blair’s doctrine. Unfortunately, for various reasons, the rest of the world is not. And America is no longer willing or able to play the world’s policeman.
A few days ago I drafted a post on my doubts about this intervention in Libya. Before I’m accused of hindsight knowledge, I should get it online.
Meanwhile, this site reports that two acclaimed photojournalists have been killed in Misratah, Libya. And Sky News reports that only the British photojournalist Tim Hetherington has died. Chris Hondros, a multiple award-winning photographer is reported to be in intensive care. Two other journalists were injured in the same incident.
[Update: It seems the first report above on the journalists was correct. Both died yesterday in Misratah. R.I.P.]
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I am staggered by all the hate directed towards our former Prime Minister. I believe that Tony Blair made the Iraq decision in good faith and is most certainly NOT a war criminal. If anyone should be tried at the Hague it should be those in the media for totally misrepresenting the information and facts. The media are to blame for fuelling this hatred as it is purely driven by them. (UK)